One size does not fit all: Court gowning directives across Canada

Robes have been ubiquitous with lawyers dating back to the Middle Ages and have been viewed as a grand tradition of the legal profession. Robes can be controversial at times, with some questioning their relevance in the 21st century legal profession. On the other hand, robes have been held up as an equalizing force in quashing distracting conversations about counsel’s appearance in court, especially for women.

The CBA’s Women Lawyers Forum has had its eye on gowning policies across Canada for several years. In 2016, the WLF tabled a resolution titled “Accommodating Maternity in Court Gowning Directives” at the Mid-Winter Meeting in Ottawa, which was passed by Council. The resolution called for all Canadian courts to adopt practice directives permitting counsel to depart from strict gowning requirements when pregnant and to provide a dignified and respectful way of informing the court of the modified attire.

The rules for gowning across Canada at the varying levels of court can be grouped into three categories: (1) no explicit gowning exemption for any reason, (2) maternity gowning exemption, and (3) gowning exemptions for personal circumstances. In the first category, the court rules discuss when to gown, but there are no explicit exemptions for gowning or instruction how to go about requesting an exemption. In the second category, court rules have explicitly set out an exemption to alter counsel’s gown for the reason of pregnancy. The final category provides for exemptions to gowning for “personal circumstances,” which may include pregnancy, or disability which would require counsel to wear altered robes.

The majority of the courts in Canada, including the majority of the Courts of Appeal, fall under the first category – having no explicit gowning exemption. No level of court in British Columbia, Alberta, Quebec, New Brunswick, North West Territories and Nunavut have any explicit gowning exemptions.

Only three Courts of Appeal in Canada have exemptions to gowning rules. Ontario and Prince Edward Island have explicit maternity exemptions and only Manitoba has a personal circumstance exemption. The Supreme Court of Canada also does not have an explicit maternity exemption but does state that any counsel who cannot meet the Courtroom Decorum requirement, must submit a written request to the registrar to wear altered robes.

Courts in Ontario, Prince Edward Island, the Supreme Court of Newfoundland, the Court of Queen’s Bench in Manitoba and the Federal Court of Appeal have explicit maternity gowning exemptions.

Finally, only seven courts in Canada; the Supreme Court of Nova Scotia, the Manitoba Court of Appeal and Provincial Court, the Saskatchewan Court of Queen’s Bench, the Yukon Supreme Court and Territorial Court, and the Federal Court of Canada, have exemptions to gowning for personal circumstance, which may cover reasons such as pregnancy or disability.

By far, the most comprehensive gowning exemption rules are in Manitoba where all levels of court provide for gowning exemptions.

In all courts across Canada, counsel must advise the court in advance of the proceedings that they will be wearing altered robes and provide the reason(s) for the alteration.

In order for robes to continue to be a positive symbol of the legal profession, court rules must reflect the realities of counsel appearing in courts across Canada. Embracing inclusive gowning rules, not only benefits women lawyers, but also lawyers who due to reason of disability or size may also find the gowning rules to be restrictive and inaccessible. Simple changes to allow flexibility in gowning will signal that all counsel are welcome and included in courts across Canada.